First in a Series: Spotlight on Pennsylvania’s Drug testing Program - Playing Favorites?

It’s late 2016 and the track is the Meadows, a harness track outside Pittsburg.

The Pennsylvania Equine Research Laboratory (PETRL) returns drug findings for a pair of trainers running horses at that track. Both of those reports are forwarded to the track from the commission’s headquarters in Harrisburg as violations of its equine drug testing program. Both findings are for betamethasone and the concentration for each is between 10 picrograms and 100 picograms. According to the commission, both individuals are penalized.

Shortly thereafter, a drug finding for the same drug with a similar concentration is reported to the commission. This time things are handled differently. No violation. No ruling. No penalty. The trainer with this finding is Ron Burke, the all-time leading trainer in the U.S. in harness racing history.

After the laboratory finding on Mr. Burke’s horse is reported to the commission, the first two rulings noted above are rescinded.

That isn’t the only issue regarding the administration of Pennsylvania’s drug testing program that has been dogging the commission.

Last summer I wrote two articles on these issues. Those pieces can be found here and here.

I believed that there was more to the stories than what I was able to report on at the time. So, I decided to dig a little deeper, and the more I dig the more reason I believe there is to question the conduct of the Pennsylvania Horse Racing Commission (PHRC).

Over the past six months, I have accumulated substantially more information regarding Pennsylvania’s drug testing program. Much of this information has come from the PHRC itself, through the Pennsylvania Department of Agriculture (PDA). Some of the information has been email responses to inquiries I have made. Most of the information, though, has been accumulated through official record requests I made under Pennsylvania’s Right-to-Know Law. This is Pennsylvania’s equivalent to a Freedom of Information Act request.

However, much of the information I would have liked to have reviewed has eluded me.

In responding to my records request, the PDA has claimed that much of the information I have requested is exempt from public disclosure. For example, the PDA declined to provide me with copies of all of its laboratory’s reports for 2016 and 2017. Instead, I received a spreadsheet containing less than the requested results. The PDA claimed that the other information that I had requested does not exist.

What was the threshold for betamethasone during 2016 and 2017?

The drug that initially caused the scrutiny is betamethasone, a corticosteroid. The main question that needs to be answered is what was the prevailing threshold at the time these horses raced in 2016?

According to Don Harmon there is no doubt what the correct threshold was. Mr. Harmon served as the presiding judge at Pennsylvania’s Harrah’s Chester for 10 years, through its 2017 race meet, after which he was told that his services would not be required in the future.

“In 2016, the racing commission office in Harrisburg sent out a list of threshold limits, and betamethasone was listed at 10 picograms,” Mr. Harmon says. “The list was sent to both horsemen’s groups, all the judges, and all three tracks (harness), and all horsemen and veterinarians had access to those threshold limits, so they could treat their horses according the threshold of 10 picograms for betamethasone and the other drugs on the list.”

The thresholds on the list distributed to the racing industry were the same as those listed by the Association of Racing Commissioners International (ARCI) in its model rules. Those thresholds originated as recommendations from the Racing Medication & Testing Consortium (RMTC). According to Mr. Harmon, the list wasn’t sent out just once. It was sent periodically as drugs were add to the list or other changes were made.

Mr. Harmon continues, “I’ve had conversations with the executive director (Bret Revington in early 2017) in Harrisburg and he was reading the threshold list and he was reading off the same list he sent the judges. It was in their possession then, and as far as I know it has always been in their possession. They wouldn’t be able to do business without it.”

The commission has maintained that, until 2018, Pennsylvania’s harness racing program was using thresholds approved by the PRC in 2009. They claim that the betamethasone threshold was 100 pg/ml during that period.

There is, to my mind, a simple and direct way to ascertain the correct threshold. Just look at what the laboratory’s thresholds were at that time.

Collecting Commission and Laboratory Records

So, on August 27, 2018, I filed an official Right-to-Know Request. I received a response from the PDA on October 4, 2018. Below is the inquiry and response.

Provide the list of drug thresholds applied by the Pennsylvania Equine Toxicology & Research Laboratory for harness racing during 2016 and 2017.

PDA’s Response to Request 5: Regarding a list of drug thresholds applied by the Pennsylvania Equine Toxicology & Research Laboratory for harness racing during 2016 and 2017, PDA does not have such a list and, therefore, the records that you request are not in its possession, under its custody or its control. Pursuant to the Office of Open Records Final Decision in Jenkins vs. Pennsylvania Department of State, Docket # AP 2009-065, it should be noted that: "It is not a denial of access when an agency does not possess records and [there is no] legal obligation to obtain them (see, e.g. section 67.506 (d)(1))."

Quite frankly, I was dumbfounded by the response. As far as I knew, every equine testing laboratory had such a list.

On October 8, 2018, in order to make sure that there was no misunderstanding, I sent a follow-up clarification to Susan Powers, the press secretary for the Department of Agriculture. I had been advised by the PDA to direct any horse racing inquiries to its press office. Below are my questions and her response.

In several responses the following statement is made: “PDA does not have the records that you request in its possession, under its custody or its control.” In this context, does PDA include the Pennsylvania Department of Agriculture, Pennsylvania Horse Racing Commission and Pennsylvania Equine Toxicology and Research Laboratory (PETRL)?

Yes.

Also, does the PDA know if this information exists and where?

In each of the responses containing that reference, the records do not exist.

Yes, they understood. They knew I was inquiring specifically to the laboratory for that information and that the records do not exist.

On October 25, 2018, not satisfied with the response I received, I filed an appeal to Pennsylvania’s Office of Open Records.

The instructions for the appeal process that the parties received the following day from the executive director of the Office of Open Records contained this statement:

Note to Parties: Statement of fact must be supported by an affidavit or attestation made under penalty of perjury by a person with actual knowledge. (emphasis in the original)

The parties were given until November 18, 2018, to submit any further information to be considered in arriving at a decision.

What I received on November 18, 2018, is what I was told the previous month did not exist — PETRL threshold lists, 25 pages total.

Betamethasone Threshold is 10 Picograms

The laboratory documents are named “PETRL Internal Thresholds.” Each list is two or three pages and is updated frequently — sometimes on a monthly basis. The lists I received are heavily redacted but cover the requested timeframe of 2016 through 2017.

The first list is dated January 14, 2016, and is the most telling. A link is provided here.

The drug betamethasone is listed at a threshold of 10 pg/ml of plasma or serum. The support documentation of the threshold is indicated by the notation, “RMTC Recommendation.” Another note on the list for this drug includes, “New for Harness.” Every subsequent list for this two-year period lists betamethasone at 10 pg/ml.

Recap

The credible evidence I’ve gathered thus far points to a change in late 2016 of the threshold for betamethasone from 10 picograms to 100 picograms.

Here is what I’ve been able to deduce transpired in 2016 with regard to harness racing:

According to Mr. Harmon, the commission had widely distributed to the harness racing industry on multiple occasions a list containing thresholds for therapeutic medications that included betamethasone at 10 picograms.

PETRL was reporting multiple drug findings of betamethasone at a 10-picogram threshold to the commission.

The commission staff in Harrisburg was forwarding those findings (at a 10-picogram threshold) to the judges as a violation of Pennsylvania’s drug program.

According the commission, two trainers were penalized for betamethasone findings between 10 picograms and 100 picograms. Those two rulings were later rescinded.

Commission’s Explanation

The PHRC has repeatedly referred to the approval of betamethasone at 100 picograms in 2009 by the racing commission and the approval of ARCI thresholds on February 27, 2018, in which betamethasone is listed at 10 picograms.

The commission appears to be arguing that it wouldn’t allow a threshold level that they did not officially vote upon.

Here is an example: The drug dexamethasone is analogous to betamethasone. Both are corticosteroids that had been previously listed at a threshold of 100 picograms by the RMTC. By the beginning of 2016, the RMTC recommendation had changed to 5 picograms and 10 picograms, respectively.

If the commission contends that those new thresholds were not applied until 2018 for harness racing, then no positive tests would have resulted for dexamethasone in 2016 or 2017 at a concentration under 100 picograms.

Based on the spreadsheet provided by the PDA and cross-checking rulings in the United States Trotting Association database (Pathways), the dates and concentrations below (in picograms) represent dexamethasone positive tests called and prosecuted in 2016 and 2017.

9/21/2016 291.25

10/2/2016 28.58

11/15/2016 46.53

12/13/2016 308.25

7/18/2017 33.9

7/19/2017 15.4

As you can see, four of the six findings are under 100 picograms, and unlike the betamethasone findings, all were prosecuted.

Any Other Explanations?

Yes, in fact, there is one more.

In PDA’s November 18, 2018, filing to the Open Records Office regarding my appeal this statement was made:

PETRL Internal Thresholds documents may have threshold standards that differ from those established by the Commission. (emphasis in the original)

I found the phrasing of the statement above curious. It uses the word “may.” The commission either has standards that are different or not — and they should know.

If there are different standards between the commission and the PETRL, then there should be a second commission list. I finally got the PETRL list, but what about a commission list, one that the bureau director would supposedly use to call positive tests?

Yes the rules don't apply fairly I Pa. I can go on and on about alot of situations but it doesn't really Matter. Lookup last week rules and regulations about me and there are 4 other big trainers that did the same thing " which I do not condone " it was a mistake but my point is they hardly received anything and me being the small guy was crusified. The rules just don't apply the same and it's a real shame...

Have you considered, once you have compiled all your information, requesting to make a presentation on all of this to the Commission directly at one of their meetings? This way they all would be educated to this and could not say they were not aware anymore. It would also then be permanently on the record as well. I don't know if they would allow it or request it be done before them in executive session, but it would be worth a shot.

Doc - Good point, although, I've seen nothing of this commission that leads me to believe that they would be receptive to listen to criticism of any kind. I'd be glad to speak to them, however, if they wish. This reminds me of the old saying on advice - "those that need it most, like it least."

Good on you joe, way to hold the commissions feet to the fire. I encourage you to look into more things involving pas horse racing industry on both sides, there is very much corruption in this state, and if i had to make an educated guess id say theres more going on that meets the eye.